Disciplinary Counsel v. Marshall
142 Ohio St.3d 1, 2014 Ohio 4815, 27 N.E.3d 481 (2014)
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Rule of Law:
An attorney engages in professional misconduct by disbursing settlement funds in violation of a direct court order, making misleading statements to the court regarding those funds, and making unsubstantiated allegations of judicial bias without a reasonable, objective factual basis.
Facts:
- Kimberly Tyus, acting as attorney in fact for her mother Bessie Tyus, retained attorney Joy Marshall to take over a personal-injury lawsuit from their former counsel, William Campbell.
- Marshall was aware that Campbell intended to assert an attorney's lien on any settlement to recover fees for the services his firm had provided.
- Within one month of taking the case, Marshall settled the lawsuit for $150,000.
- During a hearing on the fee dispute between Marshall and Campbell, Judge Nancy Russo gave the $150,000 settlement check to Marshall.
- Judge Russo orally ordered Marshall to hold a portion of the settlement funds in trust pending the resolution of the fee dispute and not to disburse more than $85,000 to her client.
- After interpreting a subsequent court entry as permission to distribute the funds, Marshall disbursed the money she was ordered to hold, paying herself over $50,000 in fees and costs and the remainder to her client.
- In a later appellate brief appealing a contempt finding, Marshall alleged that Judge Russo's rulings against her were the result of improper racial and gender bias.
Procedural Posture:
- Former counsel for Bessie Tyus filed a notice of charging lien and a motion to enforce it in the Cuyahoga County Court of Common Pleas.
- After a hearing, the trial court (Judge Russo presiding) ordered Marshall to hold a portion of the settlement funds in trust.
- When Marshall disbursed the funds in violation of the order, Judge Russo initiated contempt proceedings and twice found Marshall in contempt of court.
- Marshall appealed the first contempt finding to the Eighth District Court of Appeals, which affirmed the finding but remanded for further proceedings.
- Disciplinary Counsel filed a complaint with the Board of Commissioners on Grievances and Discipline, charging Marshall with multiple counts of professional misconduct.
- A Board panel found Marshall committed most of the alleged violations and recommended a two-year suspension with one year stayed.
- The full Board adopted the panel's findings and recommendation, prompting Marshall to object and bring the matter before the Supreme Court of Ohio for final review.
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Issue:
Does an attorney engage in professional misconduct warranting suspension by disbursing settlement funds in direct violation of a court order, making misleading statements to the court about the funds, and alleging judicial bias without a reasonable factual basis?
Opinions:
Majority - Per Curiam
Yes, an attorney engages in professional misconduct by disbursing settlement funds in violation of a court order, misleading the court, and alleging judicial bias without a reasonable basis. The court found Marshall acted dishonestly by distributing settlement proceeds in direct contravention of the trial court's order to hold them in trust; her personal interpretation that a subsequent filing allowed the disbursement was unreasonable. Marshall also made false and misleading statements to the court during a contempt hearing, including denying that she had 'taken' a fee when she had in fact collected over $50,000. Furthermore, her allegations of racial and gender bias against Judge Russo were made recklessly and without a reasonable factual basis, violating Prof.Cond.R. 8.2(a). The court applied an objective standard, concluding that adverse rulings alone are insufficient to support such serious accusations and that a reasonable attorney would not have made them based on the available information.
Dissenting - French and O'Neill, JJ.
No, the dissent did not contest the finding of misconduct but disagreed with the severity of the sanction. The dissenting judges would have imposed a suspension of two years with 18 months stayed, rather than the majority's sanction of a two-year suspension with one year stayed.
Concurring - Lanzinger, J.
Judge Lanzinger concurred in the judgment only, agreeing with the ultimate sanction but not necessarily with all of the majority's reasoning.
Analysis:
This decision reinforces the high standard attorneys must meet before alleging judicial bias, establishing that such claims require an objective, reasonable factual basis beyond mere adverse rulings. It serves as a stern warning that an attorney's subjective interpretation of court orders does not excuse disobedience when that interpretation is objectively unreasonable. The case highlights that a combination of dishonesty toward the court, defiance of judicial orders, and baseless attacks on a judge's integrity constitutes a pattern of misconduct that warrants a significant sanction, such as suspension from the practice of law.
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